PEOPLE v. ADAMS

The slip opinions posted here are
the latest electronic versions available from the Michigan Court
of Appeals. Updates are posted as received from the courts.
Consult the advance sheets and bound volumes of the official
reports for final revisions and proper pagination. Errata and
requests for correction of Michigan Court of Appeals opinions
should be submitted to: Deputy Reporter of Decisions, 800
Washington Square Building, Lansing, MI 48933; (517) 373-0714.

PEOPLE v. ADAMS

October 9, 1998

No. 202665

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v

Recorder’s Court

STEPHAN CHARLES ADAMS, LC No. 95-004495

Defendant-Appellee.

No. 202666

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v

Recorder’s Court

JASHUBAI KESHUBAI DESAI, LC No. 95-007158

Defendant-Appellee.

Before: Griffin, P.J., and Gribbs and Talbot, JJ.

GRIFFIN, P.J.

In these consolidated appeals, the people appeal as of right
an order of the Recorder’s Court granting defendants’ motions to
dismiss charges of first-degree murder, MCL 750.316; MSA 28.548,
conspiracy to commit first-degree murder, MCL 750.157a; MSA
28.354(1), and solicitation of first-degree murder, MCL 750.157b;
MSA 28.354(2). We reverse and remand.

I

Defendants were charged in 1995 with the November 3, 1983,
strangulation murder of Anna Marie Turetzky in Woodhaven,
Michigan. Turetzky, defendant Desai’s business partner in the
operation of a medical clinic, was found dead in her automobile
parked behind a local motel. Desai had allegedly solicited
defendant Adams to commit the murder. Following separate
preliminary examinations, defendants were bound over and their
cases consolidated for trial. Pertinent to this appeal, both
defendants moved to dismiss the charges on the basis of prearrest
delay, arguing that the prosecution’s twelve-year delay in filing
charges caused a loss of evidence prejudicial to defendants’
right to a fair trial. In support of their motions, defendants
relied upon a stipulation of facts regarding unavailable
witnesses and lost evidence.

According to the stipulation, the following witnesses are now
deceased or otherwise unavailable: Philip Hatcher, an insurance
agent who arranged life insurance policies making Desai and
Turetzky beneficiaries upon the death of the other; Jintendra
Surti, bookkeeper for Desai and Turetzky, who was the custodian
of the clinic’s banking records; Thomas McCrary, who negotiated a
clinic check for $2,018 to Adams, characterized by the
prosecution as the "payoff" for the homicide; Woodhaven
Police Sgt. James Johnson, the preliminary investigator of the
murder; Peter Slywka, Turetzky’s father, who made reward offers
for the discovery of the perpetrator; Dr. Ruth Higgins, a
psychiatrist who was familiar with McCrary’s psychiatric
problems; Dr. Gregory Kaufman, who performed the autopsy on
Turetzky; and Frank Raines, an associate of key witness Lawrence
Gorski.

Certain physical evidence was also stipulated by the parties
to be missing: tape recordings of conversations between various
individuals, including defendants and an individual named Rick
Lobdell, which were turned over to the police;[1] an "Anarchist’s
Cookbook"[2] once
possessed by Adams; the contents of Adams’ wallet, duffel bag,
and automobile, taken from his possession following an alleged
extortion attempt and beating in 1984; and, finally, a piece of
tissue paper allegedly found by Turetzky family members in the
victim’s automobile after her murder and after a search of the
car by the police.[3]

Both defendants filed motions to dismiss in the trial court,
arguing that all of the missing witnesses and physical evidence
were potentially exculpatory and that the twelve-year delay in
filing charges prejudiced their rights to a fair trial. Following
an evidentiary hearing, the trial court ruled that defendants
were irreparably prejudiced and unable to present a defense given
the loss of testimonial and physical evidence. The trial court
further found that the prosecution intentionally delayed the
investigation in order to gain a tactical advantage over
defendants by waiting for an anticipated change in the law that
would permit the admission of Adams’ inculpatory hearsay
statement against Desai. The trial court granted defendants’
motions to dismiss, concluding that the prosecution’s reasons for
delay did not justify the undue prejudice to defendants.

II

On appeal, the prosecution argues that the trial court erred
in dismissing the charges against defendants. This Court reviews
a trial court’s ruling regarding a motion to dismiss for an abuse
of discretion. People v McCartney, 72 Mich App 580, 589;
250 NW2d 135 (1976). Upon review, we agree with the prosecution
that, under the present circumstances, the trial court abused its
discretion in granting defendants’ motions to dismiss.

Two United States Supreme Court cases decided after 1968 have
addressed the problem of preindictment or prearrest delay. In United
States vMarion, 404 US 307; 92 S Ct 455; 30 L Ed 2d
468 (1971), the Court recognized that the Due Process Clause
afforded only "limited" protection to those persons who
have not been arrested but observed that such persons’ primary
protection was in the applicable statutes of limitation. The
Court explained this decision further in United States v
Lovasco, 431 US 783; 97 S Ct 2044; 52 L Ed 2d 752 (1977),
when it established a two-part test to be used in the due process
inquiry. First, the Court observed that "proof of prejudice
is generally a necessary but not sufficient element of a due
process claim." 431 US 783, 790. Second, the Court held
that, in addition to the consideration of prejudice, a court was
to explore the reason for the delay.[5]

Adopting this two-part test, the Bisard Court rejected
an interpretation of Lovasco that would place an
"extremely heavy burden" on a defendant by requiring
that the defendant prove both actual prejudice and unexplainable
delay. Id. at 789. Instead, the Court construed Lovascoin the following manner:

[W]e hold that, once a defendant has shown some prejudice, the
prosecution bears the burden of persuading the court that the
reason for the delay is sufficient to justify whatever prejudice
resulted. This approach places the burden of coming forward with
evidence of prejudice on the defendant, who is most likely to
have facts regarding prejudice at his disposal. The burden of
persuasion rests with the state, which is most likely to have
access to facts concerning the reasons for delay and which bears
the responsibility for determining when an investigation should
end. [Id. at 791.]

Pursuant to the requisite two-part inquiry, a defendant must
initially demonstrate "actual and substantial"
prejudice to his right to a fair trial. Bisard, supra at
790; People v White, 208 Mich App 126, 134; 527 NW2d 34
(1994)[6]; Dungey, supra at
88. Accord, Marion, supra 404 US at 325; United
States vRogers, 118 F3d 466, 474 (CA 6, 1997); United
States v Brown, 959 F2d 63, 66 (CA 6, 1992); United States
v Lash, 937 F2d 1077, 1088 (CA 6, 1991). In this context, as
one federal court has explained, a defendant must show not only
"actual prejudice, as opposed to mere speculative prejudice
. . . but also that he show that any actual prejudice was
substantial — that he was meaningfully impaired of his ability
to defend against the state’s charges to such an extent that the
disposition of the criminal proceeding was likely affected."Jones vAngelone, 94 F3d 900, 907 (CA 4, 1996). See
also Rogers, supra at 476. This Court has reiterated that
proof of "actual and substantial" prejudice requires
more than generalized allegations:

A defendant shoulders the burden of coming forward with
evidence of prejudice. Until he does so, the prosecution’s burden
– to persuade the court that the delay was justified in the face
of any resulting prejudice — is not triggered. The imperfection
of a witness’ memory may be exposed to the trier of fact during
direct or cross-examination and may be emphasized to buttress or
undermine credibility. If such absence of memory by a defendant’s
material witness due to a lengthy prearrest delay seriously
impedes or significantly hinders a defendant in presenting his
case, prejudice, of course, would be shown, and the prosecution
would be required to demonstrate how that prejudice was justified
by the prearrest delay. In this case, however, no such impediment
or hindrance was manifest. Moreover, we decline to accept
defendant’s assertion on appeal that "the exceptionally long
delay in the present case should itself raise a strong inference
of prejudice." Without specific references to instances of
prejudice-generating occurrences, and without specific
allegations of actual prejudice resulting therefrom, the
prosecution would be at an insuperable disadvantage indeed in
attempting to show how such unspecified prejudice was in fact
justified. We will not put the cart before the horse. [Loyer,
supra at 120].[7]

Although the Michigan courts have not had occasion to address
the impact that the death of a material witness during an
interval of prearrest delay has on the continued prosecution of a
case, the federal courts have consistently held, in the present
context, that the death of a witness alone is insufficient to
establish actual and substantial prejudice:

The death of a potential witness during the preindictment
period may demonstrate the requisite prejudice if the defendant
can demonstrate that exculpatory evidence was lost and could not
be obtained through other means. . . . However, a defendant does
not show actual prejudice based on the death of a potential
witness if he has not given an indication of what the witness’s
testimony would have been and whether the substance of the
testimony was otherwise available.

Even where a defendant specifies what a deceased witness’s
testimony would have been, actual prejudice is difficult to
prove. [Rogers, supra at 475.]

In the instant case, we conclude that defendants have not
demonstrated the requisite actual and substantial prejudice
necessary to satisfy the first prong of the Bisard test
and thereby shift the burden of persuasion to the prosecution to
show the reasonableness of the delay. Defendants have made no
showing that any of these witnesses would have provided relevant
information beneficial to the defense of their cases. Although
defendants contend in general terms that they have been deprived
of the opportunity to cross-examine the unavailable witnesses,
defendants have neither specified the substance of that
cross-examination testimony nor offered anything more than mere
speculation concerning the exculpatory nature of such testimony.
Indeed, if any party has been detrimentally affected by the
unavailability of these witnesses, it is the prosecution, not
defendants. The unavailable individuals were prosecution
witnesses who, it is reasonable to surmise, would have provided
information valuable to the prosecution. Consequently, the
prosecution must move forward without the benefit of this
testimonial evidence.[8]

Defendants have likewise failed to show actual and substantial
prejudice by reason of the missing physical evidence. Defendants
contend that the loss of the physical evidence has denied them
the opportunity to conduct testing, such as fingerprint analysis,
to determine whether the evidence may have been exculpatory.
However, this argument, too, rests upon speculation. Defendants
have not substantiated the potentially exculpatory aspects of
this physical evidence, for instance, by delving into the
substance of the missing tape-recorded conversations or
explaining how the loss of the tissue paper and Anarchist’s
Cookbook, incriminatory in nature, prejudiced their defense.[9]
In fact, testimony adduced at the evidentiary hearing held below
indicated that the missing evidence was the prosecution’s loss
and defendants’ gain, given that the prosecution’s case
rested in large part upon this lost evidence. Defendants’ vague
claims of prejudice therefore fall short of the requisite proof.[10]

We conclude the trial court abused its discretion in granting
defendants’ motions to dismiss on the basis of prejudicial
prearrest delay. McCartney, supra. Defendants’ claims of
prejudice are too indefinite and speculative to satisfy the
threshold requirement of Bisard, supra, that "actual
and substantial" prejudice be shown before the burden of
persuasion shifts to the prosecution to justify the delay.
Defendants have not carried their burden.

III

Next, even if we were to assume the existence of actual and
substantial prejudice to defendants, we nonetheless conclude that
the trial court clearly erred by finding that the prosecution’s
proffered reasons for the delay did not justify the resultant
prejudice.

In the present case, an important piece of evidence for the
prosecution is the alleged statement made by Adams to witness
Lawrence Gorski, in which Adams confessed to killing Turetzky at
the request of Desai. Prior to the Michigan Supreme Court’s
decision in People vPoole, 444 Mich 151; 506 NW2d
505 (1993), this alleged statement could only be introduced into
evidence against Adams. However, the Poole decision may
now provide authority for the use of Adams’ statement against
Desai as well. The Poole Court held, pursuant to MRE
804(b)(3), that a declarant’s inculpation of an accomplice, made
in the context of a narrative of events at the declarant’s
initiative without prompting or inquiry, and clearly against
penal interest, is admissible as substantive evidence at trial.
The trial court in the instant case found that the prosecution
deliberately waited for this anticipated change in the law before
filing criminal charges against the defendants:

[T]he prosecutor’s office contends that the delay in
prosecution of this case was due to the ongoing investigation.
This is a legitimate reason for a delay. . . .

However, a change in the law occurred permitting them to use
Adams’ alleged statement against Desai as well as himself. The
tactical advantage of trying both defendants together came as a
result of waiting for the Poole decision, rather than the
discovery of new evidence from an investigation. Thus, this Court
finds that the prosecutor intended to wait for an anticipated
change in the law, that was tactically advantageous to them in
the prosecution of this case, under the guise of conducting an
ongoing investigation.

We respectfully disagree and hold that this finding is clearly
erroneous.

In Lovasco, supra at 431 US at 795-796, the United
States Supreme Court opined that an investigative, as opposed to
tactical, delay does not violate the Due Process Clause of the
Fifth Amendment:

In our view, investigative delay is fundamentally unlike delay
undertaken by the Government solely "to gain tactical
advantage over the accused," United Statesv
Marion, 404 US at 324; 92 S Ct at 465, precisely because
investigative delay is not so one-sided. Rather than deviating
from elementary standards of "fair play and decency," a
prosecutor abides by them if he refuses to seek indictments until
he is completely satisfied that he should prosecute and will be
able promptly to establish guilt beyond a reasonable doubt.
Penalizing prosecutors who defer action for these reasons would
subordinate the goal of "orderly expedition" to that of
"mere speed," Smith v United States, 360 U S 1,
10; 79 S Ct 991, 997; 3 L Ed 2d 1041 (1959). This the Due Process
Clause does not require. We therefore hold that to prosecute a
defendant following investigative delay does not deprive him of
due process, even if his defense might have been somewhat
prejudiced by the lapse of time.

Our review of the record reveals that several factors were
involved in the decision not to prosecute at an earlier point in
time. The testimony of then-assistant prosecutor Nancy Alberts,
when read in context, is particularly telling in this regard. She
testified that the Poole hearsay problem was but one
factor in the decision not to prosecute.[11]

Alberts’ testimony clearly underscores that investigative
rather than tactical concerns governed the prosecution’s course
of action.[12] The investigation took
many twists and turns during the years following Turetzky’s
murder. As noted above, key witnesses died and evidence became
unavailable. In 1984, a federal grand jury convened to
investigate an unrelated matter involving defendant Desai, and
more evidence was allegedly garnered pertaining to this
investigation. Adams and the key witness, Gorski, disappeared and
were eventually located outside of Michigan. Gorski failed to
appear for a polygraph examination, and Adams, who did take a
polygraph, appeared to have "passed" the examination.
Finally, in 1994, a one-man grand jury was appointed to
investigate unsolved murders within the City of Detroit,
including the murder in this case. Both defendants were
subpoenaed to appear before the grand juror and, based on the
cumulative evidence gathered from this investigation and the
intervening years of investigation, defendants were finally
charged with crimes arising out of the death of Turetzky. On the
record, we find no deliberate tactical delay by the prosecution
and hold that the trial court clearly erred in its finding to the
contrary. [13]

For these reasons, we reverse the decision of the trial court
and remand these cases for further proceedings consistent with
this opinion. We do not retain jurisdiction.

/s/ Richard Allen Griffin
/s/ Roman S. Gribbs
/s/ Michael J. Talbot

FOOTNOTES:

[1]
These tapes were made in the approximate time frame of January
through April 1984, allegedly in an attempt to exact a confession
from Adams and extort Desai.

[3]
According to the preliminary examination testimony of the
victim’s children, the initials "S A" (defendant Adams’
initials) were written on this piece of tissue paper, which was
turned over to the police.

[4]
Pursuant to the Hernandez test, once a defendant
demonstrated that some prejudice had occurred as a result of the
delay, it was incumbent on the prosecution to show (1) an
explanation for the delay, (2) that the delay was not deliberate,
and (3) that no undue prejudice attached to the defendant. Hernandez,
supra at 147. If the prosecution failed to establish any of
the three prongs of the test, a due process violation was
established.

It requires no extended argument to establish that prosecutors
do not deviate from "fundamental conceptions of
justice" when they defer seeking indictments until they have
probable cause to believe an accused is guilty; indeed, it is
unprofessional conduct for a prosecutor to recommend an
indictment on less than probable cause. It should be equally
obvious that prosecutors are under no duty to file charges as
soon as probable cause exists but before they are satisfied they
will be able to establish the suspect’s guilt beyond a reasonable
doubt. To impose such a duty "would have a deleterious
effect both upon the rights of the accused and upon the ability
of society to protect itself," United States v Ewell,supra, 383 US [116] at 120; 86 S Ct [773] at 776; [15 L Ed
2d 627 (1966)].

[6]
Judge Griffin acknowledges that the test for prearrest delay
articulated and applied in the instant case is more precise than
the standard that he recited in White, supra at 134-135.

[8]The issue of undue prearrest
delay does not entail consideration of the strength of the
prosecution’s case, but rather prejudice to the defense. In this
regard, we note that defendants filed motions to quash in the
trial court. In lieu of its order dismissing the cases on the
basis of prejudicial prearrest delay, the trial court did not
address the merits of defendants’ motions to quash.

[9]
Defendants’ reliance on People v Dungey, 147 Mich App 83;
383 NW2d 128 (1985), is misplaced. In Dungey, the
defendant was not charged with criminal sexual assault until
seven months after the alleged assault occurred. Immediately
after the offense, the victim underwent a physical examination,
which provided secretion evidence. During the intervening delay,
the evidence lost its identifying properties, thus preventing the
defendant from conducting tests on the evidence. The Dungey Court,supra at 88, ruled that

The secretion typing tests could not prove that defendant was
guilty of the act, but offered the possibility of excluding him
from the class of suspects. The prosecutorial delay and neglect
made it impossible to obtain the potentially exculpatory
evidence, and therefore the prejudice to defendant is clear.

The defendant in Dungey amply demonstrated that the
physical properties of the missing evidence could have
potentially excluded him as a suspect. The missing evidence in
the instant case is potentially inculpatory, and defendants have
not otherwise specified how these items may have exculpated them
or meaningfully impaired the defense by their loss.

[10]
Moreover, this Court has held, albeit in a different but
nonetheless pertinent context, that a loss of physical evidence
that occurs before a defense request for its production does not
require reversal absent the intentional suppression of evidence
or a showing of bad faith. People vJohnson, 197
Mich App 362, 365; 494 NW2d 873 (1992); People v Albert,
89 Mich App 350, 352-353; 280 NW2d 523 (1979). Defendants have
not succeeded in showing, based on the testimony generated at the
evidentiary hearing, that the police or the prosecution acted in
bad faith or intentionally suppressed or destroyed the missing
evidence. On the contrary, one of the original investigating
officers, Sergeant Osborn, expressly disavowed any intentional
destruction of evidence.

Q. (Defense Counsel) You earlier testified I think, and
correct me if I’m wrong, that you made a decision not to
prosecute at a particular time based upon the state of the law at
that time regarding this penal interest exception to the hearsay
rule?

A. (Alberts) That was as to Dr. Desai, yes.

Q. Okay.

A. There were other considerations. That was one of
them.

Q. What were the other considerations?

A. The quality of the evidence we had.

Q. All right. Is it fair to say that you weren’t
satisfied that there was a prosecutable case without that
statement of Gorski?

A. That was one factor —

Q. Do you recall —

A. — as against Dr. Desai.

Q. Okay. Do you recall other factors?

A. There were a problem with — that the case was a
circumstantial one, as I remember it, although I don’t remember
all of the evidence, but I remember that being one problem. And
another one was the — the quality of the evidence against Mr.
Adams, the quality of Mr. Gorski’s testimony as — and I think
that’s about it. It was not the — at that point it certainly was
not — not as strong a case as I thought we could deal with.

Q. Okay. Was caseload a factor, your caseload?

A. No.

Q. Okay. In terms of Gorski, did you ever interview him
yourself?

A. No.

Q. Do you recall one of the problems with Gorski being
the fact that after he was interviewed, he was requested to take
a polygraph and he didn’t show up for the polygraph?

A. Yes.

* * *

Q. Okay. Your decision to not prosecute based upon the
state of the law regarding the penal interest exception to the
hearsay rule was made before or after you received those [grand
jury] transcripts?

* * *

A. My decision to not prosecute was based on a number
of factors. That decision was made after Mr. Gorski did not take
the polygraph and I don’t think we did anything else after that,
so if that would help you with you time frame, I believe that
everything was concluded after that point.

* * *

Q. Did you at some point in time make a strategic
decision or a tactical decision to not prosecute this case at a
particular point in time until the law changed or became more
favorable with regard to the admissibility of this conversation
that had problems relating to the penal exception to the hearsay
rule?

A. No.

Q. Did you ever consider that the longer that you delay
in bringing or prosecuting this case, that it was going to have a
detrimental effect on the ability to reconstruct facts through
witnesses because memories would have been faded or evidence
would have become lost?

* * *

A. As to this particular case, I mean what I – I want
to be careful here because always it’s a detriment that a case is
old. At the time I got the case, that was going through my mind
because I got the case a number of years after the murder had
occurred. But in terms of whether or not I delayed, I had no
intention of delaying it. To me it was a decision of whether or
not I’m going to prosecute or not prosecute.

* * *

Q. As you look back on this case now, was it the
ability or the wherewithal of Gorski to pass a polygraph on what
he said that was pivotal in your decision whether to prosecute
this case?

A. As to whether or not to prosecute the case against
Steve Adams, it was very important. I don’t know, I can’t
speculate today as to whether or not he had passed, would I have
decided to prosecute, I can’t tell you that, but it definitely
was very important.

Q. Was there some reason that you wanted to prosecute
the doctor and Mr. Adams at the same time as opposed to one
before the other?

A. Well, it’s always advantageous to prosecute two
defendants at once but I guess that’s the only – only reason, but
I didn’t see any way that I could do it.

Q. Is that to say that it gives you some sort – it’s
advantageous, it’s some sort of a strategic advantage to do it
that way?

A. Sure, if you have the evidence.

Q. Why is that?

A. Well, you only have to – you only have to do the
case once, basically that’s it I guess, and I would think a fact
finder would understand more what you’re getting at if you have
two people.

Q. In other words, it’s easier to present the jury with
all of the persons that you think are involved in the same
courtroom?

A. Sure.

Q. Was delaying a factor to collect evidence to give
you an opportunity to bring the case against both of them
together?

A. Well, you’re assuming a question that I had a goal
of delaying and it definitely was not – delay was definitely not
- not a thing that I saw going in my favor at all. Delay usually
goes against the prosecution, and I was never in favor of delay.
And I don’t remember anyone ever coming through my mind or ever
being communicated to me that it should be delayed. We’re trying
to work as quickly as possible.

On cross-examination, Alberts reiterated that investigative
concerns motivated her decision not to prosecute:

Q. (the prosecutor) If you could have, in you
professional judgment, charged this case in 1988, would you?

A. Absolutely.

Q. Why didn’t you?

A. I didn’t think I could get past a preliminary
examination.

Q. Did it concern you that on the one hand you had
information, however accurate it was, that Mr. Adams had passed a
polygraph?

A. Yes.

Q. Did that influence your decision on whether to
proceed at all?

A. Yes.

Q. Why?

A. Because he may have been telling the truth. Frankly,
from my looking at the other evidence, I really doubted the
results of the polygraph, but that is powerful evidence and
assuming that it was – that it was correct, I found it to be
pretty strong evidence for the defense.

Q. And did –

A. A big hurdle.

Q. Were you concerned about perhaps charging an
innocent man?

A. Of course.

Q. And did that weigh on your decision?

A. Sure.

Q. To your knowledge, in the time you were in the unit,
was there ever a grand jury impaneled to deal with a specific
case?

A. I don’t think so.

Q. Did you delay this prosecution to hurt the defense?

A. I didn’t delay the prosecution at all. I denied the
prosecution.

[12]
David Hesburn and James Osborn, two of the police officers
involved in the investigation during the twelve-year period, also
testified at the evidentiary hearing that the investigation was
never delayed to gain a tactical advantage.

[13]
We further reject the underlying premise advanced by defendants
and accepted by the trial court that the Wayne County Prosecutor
is capable of predicting Supreme Court decisions years in advance
of their issuance. Such clairvoyance would be most extraordinary.